What After NALSA?

Devina Buckshee is the National Lead, Gender Justice, at One Future Collective.*

The National Legal Services Authority (hereinafter NALSA) judgment was welcomed as a harbinger of much-awaited equality for all persons, especially the legally ignored transgender people of India, in 2014. It promised equal human rights and fundamental dignity for all under the Indian constitution. Under NALSA, the central and state governments were to provide affirmative action, medical and social welfare etc., to trans persons in India. It finally brought with it a legally backed promise of dignity and inclusion.

It is 2018 Something must have changed?

Even today, little has changed for the trans community. The landmark Supreme Court judgment issued directives to central and state governments to institute policy changes, but the central government has not issued uniform procedures or accountability. The lack of definitive guidelines resulted in inconsistent implementation across states, from Chandigarh creating a 14 member Transgender Welfare Board in 2017, to Meghalaya, which still denies trans persons legal recognition.

Additionally, parliamentarians are not sensitized about trans issues, and this lack of political will continues to disenfranchise the very people the judgment set out to protect. Ambiguities with terminology in the judgment also creates confusions, as it is not clear if trans persons have to identify with a particular sex on the gender binary or if they can choose a third ‘other’ option and still avail equal rights. It is important to also note that many trans folk chose not to disclose their identity due to the very real fear of violence and oppression; under this light forcing them to ‘out’ themselves to receive the benefits of NALSA is extremely dangerous. If the person chooses to document a change of sex, pervasive transphobic attitudes often continue to create bureaucratic hurdles and discrimination. For example, as per the ministry of external affairs, requirements for a new passport include a medical certificate and new identity documents. This ignores trans persons who either chose to forgo surgery, or more frequently cannot afford it (especially given the difficult economic circumstances of most members in the community). The latest supplement to the NALSA judgment, the Transgender Persons (Protection Of Rights) Bill of 2016, has proposed further invasive and discriminatory practices such as creating a screening committee to judge a person’s identity. This bill has not been passed in the parliament as of yet, but it clearly undermines the ideals of self-determination and autonomy promised under NALSA.

In a step forward, one of the policy proponents of NALSA is its directive on affirmative action. However, proposing a reservation just for employment and not also for education prove that this bill is under-researched and impractical. Trans Indians face a strange catch-22 situation, as they are still unable to get access to the requisite education and qualifications for employment. Another confusion with this issue is that these blanket OBC reservations ignore the intersectional, hierarchical caste structure of our society, and the reality of Dalit trans persons. Do the latter get double reservations? Do they have to choose one part of their identity and forgo the other? The urgent need for such clarifications again shows the lack of understanding of the multiplicity of trans lives while forging the policy.

What have been the positives?

A notable positive outcome of the judgment has been the follow through of directives from the Supreme Court in 2014 and the subsequent passing of five centrally sponsored social welfare schemes. These include schemes for financial support for parents of transgender children, to the national pension scheme for transgender persons. However, these too are mired with many implementation problems, mainly stemming from prejudice and a lack of awareness of rights. This again underscores the importance of welfare schemes to sensitize officials and reduce instances of violence and discrimination by law enforcers and the police.

Despite its many issues, the NALSA judgment did depict a progressive understanding of identity and self-determination, with legal recognition of the same. Furthermore, the directive to affirmative action recognizes the institutional obstacles for trans persons in a cis-centric societal order, and hopes to level the playing field.

The trans community has historically been forced to live on the margins of gendered society, and while the judgment is not without its faults, it is indeed a step forward towards trans inclusion. In lunging forward to create a more egalitarian society, it would be prudent to include more trans voices in the conversation to revise and improve the NALSA policy.

*One Future Collective is the outreach partner for the Trans Diamond Festival. This article series, across platforms, is a result of the ongoing effort of Make Room India and One Future Collective to discuss issues of the transgender community and build an ecosystem towards strengthening the trans rights movement in India.

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